Home > Journals > WMLR > Vol. 66 (2024-2025) > Iss. 3 (2025)
William & Mary Law Review
Abstract
This Article undertakes a wholesale reassessment of the sovereign veil-piercing framework created by Bancec, a landmark U.S. Supreme Court case. The Bancec framework limits foreign states’ ability to insulate themselves from accountability by acting through corporate entities. Plaintiffs often need to satisfy Bancec to secure jurisdiction over sovereigns or enforce rulings against them, but rarely succeed. The Author argues that one reason why is that lower courts are reading the case too narrowly. Specifically, some courts are conflating the Bancec framework with the more restrictive alter ego doctrine. In addition, some courts are insisting on certain formal indicia of agency to justify attributing conduct from a controlled entity to a state, which Bancec itself did not contemplate. Finally, some courts are improperly exempting states’ sovereign acts from scrutiny in their analyses, creating a gaping loophole. This Article rethinks all of these approaches, drawing on extensive authority under both U.S. and international law that lower courts and other scholars have largely overlooked. If adopted, its proposals could transform plaintiffs’ prospects for recovery in a wide range of cases, from clergy abuse lawsuits to arbitration award enforcement proceedings.
